Serious Organised Crime and Police Bill

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Vera Baird: I note what the hon. Gentleman says about the word ''likely'' and the absence of any need for intention, and I must say that I have never liked that. Is not it correct to say that the wording in the provision follows exactly the wording in the earlier provision, except that that was about racial hatred? Is not it also correct to say that in all the other public offences related to threatening, abusing or insulting behaviour, ''likely'' is available as a test, unsatisfactory though it may be? Is not ''likely'' quite a strong test? It is not that if someone does something, certain consequences may follow, but that they are likely to follow. It might be hard for someone to be in a situation in which racial hatred is likely to follow without appreciating that. Might not there be a subterranean intent in there?
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Mr. Clappison: I shall come to the distinction between ''religious'' and ''racial'' in a minute. However, there are clear differences in the wording of the provisions in the 1986 Act and the new provisions. One is that, although the word ''likely'' is still used, but the wording of paragraph (b) in the Act was

    ''having regard to all the circumstances racial hatred is likely to be stirred up thereby.''

The new wording is,

    ''having regard to all the circumstances the words, behaviour or material are . . . likely to be heard or seen by any person in whom they are . . . likely to stir up racial or religious hatred.''

Some new wording has gone in and I think that the hon. and learned Lady would agree that the Minister needs to tell us why such a change has been made, and in particular why the expression ''any person'' has been slipped in. Does that widen the provisions? We need explanations from the Minister about all those things.

Vera Baird: I cannot explain for the Minister, although it is very interesting to work out what is going on. Is not the test narrower? The hon. Gentleman suggests that by changing the wording has opened the gate more widely. Hitherto, if someone did something that was likely to stir up racial or religious hatred, that was it. Now, under the new wording, they have to be within range of someone else—someone must be likely to hear or see something—and that person must be likely to be incited to racial hatred. Is not that narrower and more specific?

Mr. Clappison: Something that is, say, broadcast or put in a book will go out to a very large number of people and the reference to ''any person'' might thus widen the potential offence because it includes persons of any sensibilities or propensities who might feel racial or religious hatred. However, we need to hear the Minister explain why the change has been made. Why not just stick with the existing wording?

My concern is that the new offence of inciting religious hatred—[Interruption.] The hon. Member for Greenock and Inverclyde (David Cairns) will have a chance to make his own contribution, if he wishes. It is correct to say that the new offence of inciting religious hatred is qualified by the provisions of section 5 of the Public Order Act, which relate to the offence of inciting racial hatred. That states that a person is not guilty of an offence if he is not shown to have intended to stir up racial hatred—if he did not intend his words, behaviour or written material to be, and was not aware that they might be, threatening, abusive or insulting. Reading that in conjunction with new subsection (1)(b), it seems that a person could be guilty of an offence under that subsection if he was aware that his words or actions might be threatening, abusive or insulting, and their effect was to stir up religious hatred in any person. That is quite a wide provision. An offence can be committed without intent to stir up hatred, or without any intent at all—just awareness that the words might be insulting if they have the effect that is described.
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Vera Baird: Is not the test one of recklessness—being aware of the risk that one's words will do something, and carrying on all the same? Recklessness is a very well grounded basis for criminal liability in English law.

Mr. Clappison: The word ''reckless'' is not used here, the word that is used is ''aware'', referring to an awareness that something might be insulting. The words speak for themselves, and they pitch the offence very wide.

Religious hatred and racial hatred are very different. The argument has already been well rehearsed: it is difficult to see—in my view, at any rate—how there can be a legitimate criticism of somebody on the grounds of race, but it is possible to have legitimate criticisms of religion. As has been said, there is a severe risk that if we leave the offence as wide as it is, there could be a restraint on freedom of expression. We all share the objective of giving people protection for their religious beliefs and practices, but we also want to protect freedom of expression. The Minister spoke of maintaining a balance. I am not sure that the Government have got the balance right. I am not reassured by the fact that the decision is to be left to the Attorney-General. If the provision is too wide—if it is bad law—why make it at all, and if it is to be made, why leave its execution to the Attorney-General?

I have a lot of concerns, and my amendment is offered as a way of improving matters. It is designed to narrow the offence and to draw a distinction between those who intend to stir up racial hatred and those who are making what they consider to be legitimate comment or criticism without that intent, but who are aware that they might risk unintentionally insulting somebody. The distinction should be made. The Government must explain why they have drawn the measure as wide as they have.

Dr. Harris: We have had a long debate, but I tabled several amendments in the group. I shall try to speed through them, as many of them are of the same kind, and I shall not speak for as long as I planned. However, before I come to the amendments I shall set out my own perspective.

I have a big interest in the relationship between the state and religion, and a long-standing interest in the problems of racism. Racially I am Jewish, although my beliefs are entirely secular. However, I know that my secular views have not protected me from insult and, on rare occasions, racial attack on the basis of my Jewish racial origins. Therefore, I am acutely aware of the problems faced by people who suffer racial attack as a consequence of incitement to racial hatred. I include in that group not just black people and Jewish people, but people who are Asian who are Muslim. There is a major problem. My Liberal Democrat colleagues and I do not fail to recognise the problem that exists and the increasing problem faced day in, day out by the Muslim community who are victimised, first because of some of the media coverage, and secondly because of perceptions following 11
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September. Their lives are blighted by unpleasant actions, from insult and abuse even to assault.

4.45 pm

As my hon. Friend said, the figures appear to be getting worse; there is clearly a problem with racism in this country. We cannot rely on the low levels of support for extremist parties to reassure ourselves, because research from the Oxford Internet Institute on behalf of the Joseph Rowntree charitable trust shows that about a quarter of those canvassed said that they would contemplate voting for the far right BNP. Sometimes people vote for parties without knowing exactly what they stand for, but there can be no doubt about what the BNP stands for; it is well known. I fear that in the run-up to the election and in the current world climate, combined with the problematical and sometimes disgraceful language used in relation to asylum and immigration, we are facing a potential danger. We owe it to people in the country to be extremely sensitive to those concerns.

Although I have major objections to the wording of the measure, as my hon. Friend said we understand what the Government want to do and the concerns of groups—they include the Muslim community, but are not restricted to them—about the problems that they face. The question is whether the proposal is the best way of solving those problems, or whether it will solve them, or help to solve them, in a way that does not create new problems. As hon. Members have said, there is a better way forward, which we can explore now and on Report.

I take a strong, secular view, which not all my party necessarily agrees with, and it might be perceived that that view is not in sympathy with those who experience the problems of racism. I campaigned for years—long before I was in Parliament—about the racism suffered by Muslim and Asian doctors in the health service, which is partly in statute, unfortunately.

We all have examples. There was a proposal to build a mosque in my constituency and a lot of people, whose motives and objections I believe were wrong, were opposed to the prospect of a minaret on the Oxford skyline. There was extensive correspondence on the matter, and I had no hesitation in supporting the right of people to apply to have that mosque built, using the planning process. I have been a welcome guest of the Oxford centre for Islamic studies since that time and before then.

I want to mention various problems before I come to the amendments. The first is the problem of definition—of recognising the difference between religion, which is mainly defined by beliefs, and race. Given that it is mainly identified by beliefs, if a religion is to be meaningful as a religion there must be a test of belief for believers; even though there can be an inherited religion, as the hon. and learned Member for Redcar (Vera Baird) said, religion can be defined by a belief or, indeed, by the lack of it. There is difficulty in defining religion, in defining the difference between one belief system and other belief systems that are political rather than religious. It is incumbent on us to
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demonstrate that there is sufficient difference between religion and race to show that there is a prima facie case for dealing with them differently in law, particularly if there is an alternative way of dealing with the mischief that we have all identified and are concerned about that may be more effective and less dangerous in terms of unwanted side effects.

How is religion to be defined? There is an early-day motion suggesting that the court should have regard to the census as 200 different answers were given to the question about religion. In a sense, it is a matter of how long is a piece of string, because people can have religious beliefs that are consistent and clear but which are not shared by many other people. I do not know what the Government intend the courts to do to define what a religion, a cult or a sect is. The boundary between religion and politics is also extremely difficult to draw these days. I have difficulty understanding what the Natural Law party is about, and I have tried. Nevertheless, the members of that party would say that they have a set of beliefs around which they run their lives. The Natural Law party is also—the clue is in the title—a political party that has stood at elections. I do not know how the courts will deal with the issue if and when a case comes before them.

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